Читать книгу The Psychology of Environmental Law - Arden Rowell - Страница 20

This portion of the chapter highlights ways that psychology interacts with specific and important actors and institutions in environmental law. These actors and institutions will be highly familiar to legal and environmental law scholars, though they may be less so to psychologists. For psychologists in particular, then, it is important to note the key actors and institutions that create, interpret, implement, and respond to environmental law. Legal and social limits may affect the psychology of decision making within these institutions.

First, consider the multiple roles private individuals play within environmental law. Often, private individuals are the intended subject of environmental laws. Consumer recycling policies, for example, are directed toward everyone who might recycle. Yet they also impact law and policy via economic decisions, as through individual consumption choices or business decisions; through political decisions, as by voting or direct contact with representatives and policy makers; and when taking direct legal action, as by bringing citizen suits, filing petitions, and/or commenting on pending regulatory rules. In all of these instances, individuals are prone to identifiable cognitive phenomena when addressing environmental impacts.

Now consider the range of institutional actors, working in different contexts, who also play an important role in environmental law and policy. These include international as well as domestic actors.

As readers may know, international law—including international environmental law—is made through several different processes. Two important processes for international environmental law are the making of international agreements and treaties, such as the Declaration of the United Nations Conference on the Human Environment (the 1972 “Stockholm Declaration”), the Rio Declaration on Environment and Development (the 1992 “Stockholm Declaration”), and international tribunals. There is no international court dedicated to environmental issues, though disputes between states concerning international environmental law are sometimes heard at the International Court of Justice, and other international institutions hear cases about specific environmental issues such as those arising out of trade by the World Trade Organization (WTO).

In both treaty-making and judicial functions, the key institutional feature of international environmental law is that it is made by states rather than by individual persons. Perhaps because of this focus, relatively little has yet been written on the psychology of international law, much less on the psychology of international environmental law (Broude, 2015; van Aaken & Broude, 2019; Rowell & van Zeben 2016). This is unfortunate, as around the world—though admittedly less so in the United States (Rowell & van Zeben, 2020)—international law has a greater impact on environmental law than on many other areas of law. Because of the impact international bodies have on environmental decisions, the psychology of these international bodies—and of various actors within them—has heightened importance in environmental contexts.

Though the psychology of state actors remains relatively understudied, individual psychology also plays an important role in international environmental law because international legal bodies are still made up of people. States are legally responsible for and obligated by international law, but individual persons are still necessarily involved in negotiating, implementing, and complying with international legal requirements. This at least makes it possible to speculate about how typical individual decision-making processes apply when people act as international institutional actors.

For instance, and as we discuss in more detail in the chapter on general law and psychology, psychological research suggests that, across a wide range of decision contexts, people tend to experience loss aversion. This makes them highly sensitive to behaviors just as with they identify as failing to meet a baseline. International agreements, like domestic law, can create psychological focal points against which an individual’s future judgments can be formed (Rowell & van Zeben, 2016). When international law is effective at creating a perceived norm, it may trigger the power of the endowment effect and loss aversion against diversions from it (Rowell & van Zeben, 2016). This effect may operate independently of traditional enforcement mechanisms, meaning that high-salience agreements such as the Paris Agreement may impact the perceptions—and thus the behavior—even of individuals and institutions who are not a party to the relevant agreement. The psychological impact of international agreements may be heightened through additional contextual factors, including unanimity and the selection of quantifiable measures of success or failure (Rowell & van Zeben, 2016). In this light, the Paris Agreement’s decision to adopt a quantified and ambitious goal—keeping global warming “well below” 2° C and aiming to keep it at less than 1.5° C above preindustrial levels—may generate significant psychological stickiness on that perceived baseline, even without an international police, court, or other entity to enforce it.

Individual judgment and decision making in the context of international law is not the only psychological feature of international law that may matter. Other aspects of international law may be responsive to the same sorts of cues to which domestic legal institutions respond. The psychology of international tribunals, for instance, may be informed by research on (domestic) judicial decision making. International agreements are drafted communally. Thus, they may be influenced by many of the same things that domestic legislatures are influenced by. For instance, both international legal actors and domestic legal actors like legislatures must often come together to represent divergent voices and interests. As such, international treaty making may be informed by research on (domestic) political psychology.

Speaking of domestic legal institutions, perhaps it is helpful also to highlight important ways in which environmental law interacts with the legislative, executive, and judicial branches, as well as in administrative agencies, and the areas of psychology that may be most relevant to understanding decision making in those realms. In some cases, recognizing the role psychology plays in various institutions may be helpful in crafting effective laws or even government designs (Rachlinski & Farina, 2002). Or it may simply help in providing a richer understanding of how and why environmental laws operate as they do.

First, consider the psychology of legislatures. Legislatures, of course, are empowered to make law and do so as a group. As we have noted, the period that saw the greatest federal legislative activity in U.S. environmental law was the so-called “Environmental Decade” of the 1970s. To legislate, legislatures must pay attention to an issue—in some cases, a tall order, given it is impossible for modern legislatures to address all possible issues that might deserve their attention. The selection of particular issues to legislate upon, or to vote to support, is thus likely to be particularly subject to psychological phenomena that affect their cognitive availability. One aspect of this may be socially constructed, as with the growing attention to ecological impacts after Silent Spring. But disasters—such as the Santa Barbara oil spill, Love Canal, or Bhopal—present another method to grab the attention of constituents as well as of legislators themselves. Once attention is grabbed, group psychology may matter: Legislatures are composed of many people and are thus subject to group polarization, availability cascades, and other dynamics that particularly affect groups making decisions. Such dynamics may merely be exacerbated by the impact of partisanship, including in triggering in-group/out-group dynamics and motivated cognition in support of the political party with whom they identify.

Second, consider the role of the executive in environmental law and policy. In the United States., the President, as the head of the executive branch, has a number of legal powers and responsibilities that can significantly impact environmental law and policy. These include issuing executive policy through executive orders and other means; appointing (and firing, if necessary) most heads of administrative agencies, including the EPA, the Secretary of the Interior, the Secretary of Agriculture, and the Secretary of Energy; enforcing the law; and, in the continued absence of significant legislative action on climate change, setting substantial portions of U.S. climate policy.

In areas of law where the President has significant power, personal psychology may play an outsized role in executive actions (as we argue it does in climate change policy). This extends our consideration of the psychology of the executive even to the level of personality (Rubenzer & Faschingbauer, 2004), psychopathy (Lilienfeld et al., 2012), or mental health (Davidson et al., 2006).

For obvious reasons this can be problematic, as is well illustrated and well documented by the example of U.S. President Richard Nixon, whose personality flaws and increasingly erratic behavior affected the behavior of his staff as they sought to manage him (Reeves, 2001). Infamously, in the waning days of the Nixon White House as impeachment loomed, Nixon’s Secretary of State and Secretary of Defense secretly told military commanders to ignore any military orders from Nixon that were not signed by the Secretaries. Apparently, they were worried that Nixon’s mental health had deteriorated to a state where he might precipitously launch a nuclear attack.

Because U.S. presidents have historically been members of political parties, the role of partisanship and political psychology can play a role as well. Consider what happens when new presidents take office and have to consider what to do with policies set by their predecessors. Where both presidents share a party affiliation, the new President might see the prior President as a fellow in-group member and thus give prior policies some deference (even subconsciously), simply because of that shared affiliation. On the other hand, if the new President is a member of a different party, prior policies may be perceived as unwise or even dangerous merely because of their out-group source. In an extreme version of this, the President may even construct his or her identity in deliberate contrast to that of the prior executive.

Third, consider the judicial role in environmental law. There is a growing literature on the psychology of judicial decision making that we cannot do full justice to here (Klein & Mitchell, 2010). A number of studies in political science look at the effect of the political affiliation of elected judges, or of their appointing executive, on the outcomes of judicial decisions. Most of it shows—perhaps as one would expect—that politics matter, even though federal judges, at least, are politically independent (Epstein et al., 2013). There has also been a smaller spate of studies, mostly conducted by the research team of Jeffrey Rachlinski, Chris Guthrie, and federal judge Andrew Wistrich, that test for various cognitive heuristics and biases in sitting judges (see Guthrie et al., 2000, 2007; Rachlinski et al., 2006; Wistrich et al., 2005 for just a small sample). That line of research shows that, for the most part, judges are subject to the same cognitive failings as most other people, with certain notable differences, such as their ability to ignore certain irrelevant evidence for purposes of Fourth Amendment exclusionary rule decisions. Generally speaking, however, we would note that the diffuse, complex, and nonhuman character of environmental impacts present a number of practical and psychological challenges to judicial decision making just as they do for everyone else. More sharply, we would simply flag that judges, like other people, can experience substantial cognitive challenges in processing environmental impacts and that those cognitive challenges can then turn into important and substantive distortions in the substance of judicial decisions in environmental law.

Finally, agencies—units of government created by statute or by direction of the President—play a distinctive and important set of roles within environmental law and policy (Rowell & van Zeben, 2020). Many of these functions mirror those of the executive, legislature, and judiciary: Environmental agencies are routinely responsible for enforcing environmental laws, for issuing environmental regulations, and for adjudicating environmental disputes. In performing each of these functions, however, agencies are empowered to act by other branches of government—Congress, the President—rather than acting on their own behalf.

Agencies are particularly important in environmental law in large part because of the complex nature of many environmental problems, which has led legislatures over the years to delegate significant authority to environmental agencies, who theoretically have the expertise and capacity to research and monitor complicated environmental problems. In the United States, much of this authority (though by no means all) has been delegated to the EPA, which is responsible for administering most of the nation’s key environmental statutes. The breadth and depth of the authority delegated to the EPA makes the agency a central legal actor in environmental law, and makes the psychology of the EPA—and of various actors within it—particularly relevant to environmental decision making.

The particular directions agencies are tasked with implementing can also play an important role. Congress generally uses statutes to issue directions to agencies regarding what goals they are supposed to achieve and how. Some of these goals are articulated quite broadly. In exercising their substantial discretion to interpret these general directions, actors within agencies may be subject to a whole slew of cognitive biases, including those generated by the availability heuristic and by motivated cognition (which we discuss at more length in Chapters 2 and 5). On the executive side, a particularly important institutional direction to agencies has come from executive orders on centralized planning and review. Since 1980, those executive orders have centralized executive review of agency actions, and required agencies to perform cost-benefit analyses for the majority of major federal regulations. The centralization of agency review gives particular weight to the psychological characteristics of individuals who hold key oversight roles, particularly the Administrator of the Office of Management and Budget and the Office of Information and Regulatory Affairs. More generally, the substantive requirement that agencies default to cost-benefit analysis—and regulate only where the quantified and monetized benefits of a proposed action justify its monetized costs, unless otherwise directed by statute—has influenced the focus of the analysis performed to justify many environmental regulations. This procedure is often justified as improving decision quality (Adler & Posner, 1999), though the psychological implications of monetization remain understudied. At the least, and as we discuss further in our chapter on ecosystem management, the fact that environmental agencies must generally monetize the impacts of proposed rules—including on nonhuman plants and animals—should be presumed to trigger a set of psychological phenomena related to monetization and quantification.